The Commission today adopted a draft EU law designed to provide a minimum EU-wide level of protection to temporary agency workers and to help the agency work sector to develop as a flexible option for employers and workers. The following outline was provided by the commission. Comments from the CIPD about the application of the directive to the UK follow below.
This proposal follows the final break-down of negotiations, after 12 months, between the EU-level social partners on temporary agency work. The draft directive establishes the principle of non-discrimination, including for pay, between temporary agency workers and comparable workers in the user undertaking to which the temporary agency worker has been assigned. The principle applies when the worker has completed [6 weeks] with the same user undertaking. The principle of non-discrimination is already present in the national laws of 11 Member States. Exceptions from this principle are possible where objective reasons exist, in particular where temporary agency workers are offered permanent contracts with their agency and are paid even on those days on which they are not assigned to a user undertaking. An exception is also possible where collective agreements stipulate the working conditions of temporary workers and provide an adequate level of protection. According to the latest data available, the share of temporary agency work in the EU grew steadily between 1991 and 1998 (10% per annum), but its share of total EU employment still remains modest at 1.4% in 1998. About 80% of temporary agency workers were employed in four Member States in 1999 : the Netherlands, France, Germany and the UK. The approximate turnover of the temporary agency sector in the EU amounted to 59 billion euros in 1999. The Commission proposal will now go forward to the European Parliament and Council for agreement by co-decision. In Council qualified majority voting applies.
Anna Diamantopoulou, Commissioner for employment and social affairs, said : “We have all committed ourselves in Lisbon to more and better jobs. As for ‘more jobs’, we have presented our proposals to the Barcelona summit and we will continue to work towards the Lisbon targets. But this proposal not only seeks to create more jobs but also aims to provide ‘better jobs’ for temporary agency workers through a basic minimum of protection throughout the EU. At the same time, it allows considerable margin for manoeuvre at national level in applying the rules in accordance with national practice in the sector.”
The proposal
The objective of the proposal is to provide a minimum level of protection for temporary agency workers and seeks, in those Member States where the sector is still underdeveloped, to review present restrictions on the sector. The proposal establishes the principle of non-discrimination in working conditions, including for pay, between temporary agency workers and comparable workers in the user undertaking as soon as the temporary agency worker has completed [6 weeks’] work in the same user undertaking.
Considerable flexibility is available since exceptions to the general principle of non-discrimination are possible a) for objective reasons (non-discrimination only applies where one is comparing like situations); b) where a collective agreement exists; c) where the temporary agency worker has an open-ended contract with the agency; d) where no comparable worker nor any collective agreement exist, either applicable to the user undertaking or to the temporary agency.
A ‘comparable worker’ is defined as a worker in the user undertaking occupying an identical or similar post to that occupied by the worker assigned by the temporary agency, taking into account seniority, qualifications and skills.
Data
There is not at this stage any systematic collection of data on the temporary agency sector at EU level, which makes description and analysis of the sector more difficult. Data is thus taken inter alia from sources in the sector itself. The sector represented 1.4% of total EU employment in 1998. According to 1999 data of the European Foundation for Living and Working Conditions and Ciett (the International Confederation of Temporary Work Agencies), temporary agency workers accounted for: 4% of those employed in the Netherlands; 3.5% in Luxembourg; 2.7% in France; 2.1% in the UK; 1.6% in Belgium; 1% in Portugal; 0.8% in Spain and Sweden; 0.7% in Austria, Denmark and Germany; 0.6% in Finland and Ireland; 0.2% in Italy (no data available for Greece). In most EU countries, 90% of temporary agency assignments are for less than 6 months, in France and Germany less than 1 month.
Background
The social partners at EU level have already concluded framework agreements on part-time work, and fixed-term contract work, which have been implemented through Council directives, but not on temporary agency work. Negotiations on temporaray agency work failed in May 2001, but only after one year of discussion by social partners. It is thus clear that the social partners were both genuinely looking for an agreement and believed that agreement might be possible until negotiations ended. As the social partners failed to agree under the procedure provided for in Article 138 of the EC Treaty, the Commission had to take the political decision whether or not to table a draft proposal for a directive. The legal basis for the draft directive is Article 137(2) of the EC Treaty (on the basis of the reference in Article 137(1) to improvement of ‘working conditions’).
People management specialists the Chartered Institute of Personnel and Development (CIPD) have criticised the draft EU directive on agency workers, officially published for the first time today, as unnecessary and impractical. Diane Sinclair, CIPD Employee Relations Adviser, commented on the proposals: “The draft directive will limit opportunities for temping in the UK. If organisations are forced to go through the bureaucratic process of comparing terms and conditions of temps with permanent staff, they are much less likely to use agency staff. The Commission’s decision to make equal treatment applicable only after an agency worker has been with the same organisation for six weeks will do little to change employers’ views of the draft directive. If implemented in the UK as it currently stands, the directive will damage employment prospects for those who can’t find a permanent job or who do not want one. It’s difficult to see who will benefit significantly from the proposals.”
The TUC welcomed the moves. General Secretary John Monks said: “This is an overdue step after the employers at European level had blocked an agreement. There are still concerns that the proposals leave worrying loopholes. British business needs agency workers to provide short-term cover and some British workers need agencies to find them short-term work. Too many businesses are using the lack of protection for agency workers to keep permanent parts of their business going with agency workers on worse terms and conditions. Employers will whinge about ‘red-tape’ from Brussels but short-term savings don’t always make long-term business sense.”
